COURT FILE NO.: CRIMJ(P) 1987/16

DATE: 2018 04 05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

C. Coughlin and V. Aujla, Crown Counsel

RESPONDENT

• and -

PRABHJEET SINGH

L. Salloum, Counsel for Prabhjeet Singh

ABHIJEET NAGRA

R. Gadhia, Counsel for Abhijeet Nagra

DILSHER SINGH

N. Rozier and K. Perchenok, Counsel for Dilsher Singh

APPLICANTS

HEARD: January 29th, 2018

CORRECTED REASONS FOR DECISION- PRETRIAL MOTION #2

LEMAY J.

[1] The three accused in this case are each charged with one count of unlawful act manslaughter. The charges arise out of an incident that took place on March 6th, 2015 at Fresh Line Foods, a company that processes fresh fruit and vegetables.

[2] Early in the morning of March 6th, 2015, the three accused and the deceased, Gurinder Singh, were all working at Fresh Line as cleaners on the night shift. They were using water hoses and other tools to clean the machinery in the plant.

[3] An interaction took place between the three accused and Mr. Gurinder Singh involving a high pressure air hose. Mr. Gurinder Singh was injured, and succumbed to his injuries.

[4] Crown Counsel has brought a motion seeking to take a view of the Fresh Line facility, which is located in Mississauga. All of the Defence counsel oppose this request.

[5] For the reasons that follow, the Crown’s motion to take a view is dismissed.

Background Facts

[6] On this motion, I had two video recordings that were filed, as well as the oral evidence of the Vice President of Fresh Line, Mr. Noel Brigido, and excerpts from the preliminary hearing transcripts.

a) The Evidence of the Incident

[7] In the early morning hours of March 6th, 2015, the three accused and the deceased were all working as cleaners at Fresh Line Foods. They were working in close proximity to each other, and were using water hoses, squeegees and other equipment to clean the food processing equipment and floors.

[8] At some point, the three accused and the deceased began to engage in horseplay. Eventually, two of the accused held the deceased down over the conveyor belt attached to the melon peeling machine, and the third accused took one of the air hoses that hangs from the ceiling and turned it on. It appears that the accused who turned the air hose on, Mr. Prabhjeet Singh, may have bypassed a safety control on the air hose using a metal fitting under the conveyor belt.

[9] Mr. Prabhjeet Singh then applied the air hose to the deceased’s rectum while the other two accused held him down. In the videotape, the deceased is then visibly in pain, undoing his smock and then collapsing on the ground. He is then helped up by the three accused.

[10] The video of the incident does not have any sound, but it is in colour, it is shot from above, and the video quality is very good. I had no trouble making out various features of the equipment and of the scene.

[11] I understand that the deceased then died of his injuries, but no evidence of that has been tendered before me yet.

[12] I was presented with a second video, shot the next day, that has sound. It shows Officer James Lidstone of the Peel Regional Police using the same air hose, and bypassing the safety control on it with a metal protrusion on the conveyor belt. Officer Lidstone then applies the hose to a pineapple. You can hear the sound that the hose makes when it is being used, but you can also hear background noise.

b) The Changes in the Facility

[13] Mr. Brigido was shown a brief excerpt from the first video, and was able to confirm that the video showed a portion of the production floor at Fresh Line. He was also able to confirm that the video shows between 20 and 25% of the production floor.

[14] Mr. Brigido was also able to confirm that the air system is the same as it was in March of 2015, and that the couplings used to connect various components are the same as they were in March of 2015. He was also able to confirm that the sound emitted by the air hose if air is being released from it without any controls is “super loud”.

[15] However, there were some details that Mr. Brigido could not confirm, as follows:

a) How many people were on the production floor when the incident took place.

b) What other machinery was running when the incident took place.

c) How much water was on the floor in the production area when the incident took place.

[16] In addition, while Mr. Brigido confirmed that the production floor looked generally the same, there had been some changes since March of 2015, as follows:

a) There is additional machinery in the area where the incident took place, including an additional automatic melon peeler and an automatic cutter at the end of the machine where the actual incident took place.

b) The air hose that was used in this incident is now permanently affixed to a machine, and cannot be used to conduct the demonstration.

c) The floor has been refinished using a different finish.

c) Logistical Issues

[17] Mr. Brigido testified that it is feasible to arrange for a view at Fresh Line. He also testified that the company would be able to provide all of the participants with the necessary safety equipment.

[18] The Fresh Line plant is located less than 20 kilometers from the Brampton